This week on Legally Speaking with Michael Mulligan:
A third charge approval review, ordered by David Eby, comes to the same conclusion as the first two: there is no basis for money laundering charges arising from a large RCMP investigation into cash or casino chips being provided to high-stakes Chinese gamblers.
A long-running public inquiry, also ordered by Mr. Eby, revealed that high-stakes gamblers from China were bypassing Chinese limits on how much money they were permitted to take out of China.
The high-stakes gamblers would transfer money from their Chinese bank account into the Chinese bank account of someone in Vancouver before flying over to gamble. The person in Vancouver would then provide the gambler with casino chips or cash to spend in the casino.
The individuals in Vancouver would charge a fee for this service and end up with money in a Chinese bank account.
As is often the case, the gambler would typically lose the money in the BC casino.
The concern was that the cash or casino chips might have been the proceeds of drug sales or other criminal activity. Permitting cash obtained in this way to be this to be deposited into a bank would be undesirable as it would encourage more criminal activity.
A large RCMP investigation, called E-Nationalize investigated this but found no evidence that the cash being provided to the gamblers was from illegal activity.
Nonetheless, the RCMP sent a report to Crown Counsel suggesting that there could still be proceeds of crime charges on the theory that the people supplying the cash or casino chips in Vancouver didn’t have the correct kind of business licence.
Crown Counsel declined to approve proceeds of crime charges premised on not having a business licence as they concluded there was no substantial likelihood of conviction and no public interest in conducting a long and complicated trial over such a trivial allegation.
Mr. Eby, as Attorney General, directed Peter Juk, the Assistant Deputy Attorney General, to review the charge approval decision as he wanted the charges to be approved.
When this kind of direction is given by the Attorney General, it must be published in the Gazette, as it is direct political interference with a prosecutorial decision. Mr. Eby used a section of the Crown Counsel Act that permitted the publication of his order to be delayed.
Mr. Juk reviewed the charge approval decision made by Crown Counsel in the ordinary way and came to the same conclusion: no charges should be approved.
Again, Mr. Eby was unhappy with this conclusion, likely because he had made money laundering a political issue and had ordered a lengthy and expensive public hearing into it.
Having been told no on a second occasion, Mr. Eby ordered Mr. Juk to hire a lawyer in private practice as a special prosecutor to review the charge approval decision for a third time.
Mr. Eby directed that the special prosecutor should consider a lower charge approval standard of “reasonable prospect of conviction” rather than “substantial likelihood of conviction” and wrote that he believed there was a “strong public interest in conducting a prosecution” on the theory of not having a business licence.
Despite these directions, Chris Considine, the senior lawyer appointed as a special prosecutor, also concluded that charges should not be approved. He released an 11-page explanation of his decision.
Also, on the show, a case involving medical negligence in the context of eye surgery is discussed. The plaintiff ended up with permanent disfigurement and significantly obstructed vision. He was awarded $180,000.
Legally Speaking Mar 2 2023
Adam Stirling [00:00:00] It’s time for our regular segment with Barrister and Solicitor with Mulligan Defence Lawyers Legally Speaking with Michael Mulligan here on CFAX 1070. Morning, Michael. How are we doing?
Michael T. Mulligan [00:00:09] Good morning. I’m doing great. Always good to be here.
Adam Stirling [00:00:11] Yesterday would have been 104 in terms of the Premier’s first 100 days of action, so perhaps it’s fortunate that this story fell outside of it. But money laundering has been a long time interest of, at that point, the Attorney General and now Premier David Eby. We saw an interesting legal story yesterday. Help us understand it.
Michael T. Mulligan [00:00:31] It’s a fascinating story. And there is some background here, 0f course, as you’ve alluded to. This has been up to the issue of money laundering, has been sort of a political issue for Mr. Eby for some time. I think he probably thought it was a winning political strategy because he could look like he was tough on some form of criminal activity and then point the finger at the previous government saying you didn’t stop this. I think that was probably the political analysis of it. But the background here is, I think, really interesting. First of all, to understand what the principal form of this sort of alleged money laundering was in British Columbia. And this much came out from this that Cullen Commission that looked into it. And in large part what appeared to been going on was this, there were Chinese citizens who were very wealthy and wish to come and gamble in British Columbia.
Adam Stirling [00:01:30] Hmm.
Michael T. Mulligan [00:01:30] And China has restrictions on taking currency and money out of China. And so to facilitate their gambling desires, what would occur is that the wealthy Chinese prospective gambler would make arrangements to transfer money into a bank account in China, then fly over maybe on their private jet to British Columbia, where they would then be provided with either like a suitcase of cash or a suitcase of casino chips, and then they would go into a casino here. And generally, as most gamblers do, lose it all. So that was the background and the concern was, well, look, might this be a way that if there was a bunch of cash, like if somebody get the cash from drug dealing or something, they’re able to launder it by giving the suitcase of cash to the whale gambler and then ending up with a bank deposit in China. That was the concern. But it’s an interesting fact that it appears that by and large, the money was winding up in the hands of the government through the government owned and regulated casino.
Adam Stirling [00:02:43] hmm.
Michael T. Mulligan [00:02:43] So what would happen now?
Adam Stirling [00:02:46] yeah.
Michael T. Mulligan [00:02:46] There was an investigation and when there are big RCMP investigations, they tend to include the letter E the beginning of them, and this one was called E-nationalize, where they did a big investigation into that kind of activity. And there to be the end of this investigation, sent a report to Crown Counsel suggesting that there might be money laundering charges, proceeds of crime, that sort of thing. And Crown Counsel, regular Crown Counsel, got that large report from the police, and they concluded that it was not appropriate to approve charges because there was no substantial likelihood of conviction. And the challenge was there what evidence is there that the cash or chips were the sort of proceeds of crime. Right, where it might be suspicious, but it didn’t look like there was there’s much evidence to establish that. And so Crown Counsel said, no, we’re not approving charges. Then there was a request to the Deputy Assistant Deputy Attorney General, Peter Juk, to review the charge approval decision made by regular crown. And we know that because of a letter the David Edy sent to Peter Juk on November 26th of 2021,.
Adam Stirling [00:03:59] mmhmm.
Michael T. Mulligan [00:04:00] And the then AG Eby, look, you just have reviewed the church approval decision and you agree that there should be no charges approved. It doesn’t meet the threshold. And then what happens is really interesting, and this is how the Crown Counsel Act works. Indeed, we have an act called the Crown Counsel Act. That act allows the attorney general to direct various things to happen. One of the things that the attorney general could do, and this is interesting, is they could simply direct approve the charges. I don’t care what you think. I disagree. Go ahead. That’s not quite what happened here. Instead, what Attorney General Eby did was to order Peter Juk to say, look where I am directing that a special prosecutor be appointed to review the decision of regular Crown Counsel, and the decision of you, Juk, to determine whether charges should be approved. And in that letter, which we now have, the November 26, 2021 letter. The then Attorney General Eby says a few things. He says, first of all, he thinks that public confidence in the justice system would be damaged if there isn’t a prosecution where there is a viable path to prosecution and saying that, I want, that I am directing that a special prosecutor and an independent lawyer go and review the decision of Crown Counsel, because I don’t like your decision that you don’t think there’s a substantial likelihood of conviction. I want to try again with somebody else.
Adam Stirling [00:05:29] Hmm.
Michael T. Mulligan [00:05:29] And then says that if that lawyer concludes there is a viable path to prosecuting the person, then the prosecution should be initiated, which is to say, it appears, don’t pay any heed to the whether there’s any public interest in prosecuting it. I’m telling you there is, and I want this reviewed. And so what happened is then Chris Considine, senior lawyer in Victoria who reviewed everything, reviewed all the material, the reports, the decisions made by Crown not to prosecute. And he released his decision, yesterday, agreeing with the decision made by both the line Crown who reviewed it and the review by Peter Juk. He said, I come to the same conclusion. And one of the fundamental problems with the proposed prosecution is appreciating that everyone might be suspicious about, well, where did the suitcase of money come from to be handed to the gambler? Right. That there wasn’t clear evidence that that was the proceeds of crime, it might be suspicious because it’s a bunch of cash or a bunch of casino chips, but it could be that somebody had that money from some business interest that was great. There’s nothing illegal in Canada about facilitating somebody from China getting money out of the country. That might be unlawful in China. But so, what? And so you could be, that the money given to the gamblers wasn’t money for a drug sales. Maybe it was just also a good business opportunity. Right? If I can make some percentage by facilitating some wealthy gambler coming to BC to gamble. Well, great. I’ll do that. Right.
Adam Stirling [00:07:08] Yeah.
Michael T. Mulligan [00:07:09] And so what was proposed by the RCMP was to suggest that the illegal activity would be operating an unlicensed money service business.
Adam Stirling [00:07:19] hmm.
Michael T. Mulligan [00:07:19] Not some criminal activity like drug dealing or other things that might come to mind for how somebody could wind up with a suitcase of cash or poker chips. And so, the reason now articulated, clearly for all to read, from Mr. Considine is, look, that was really shaky ground upon which to find a very complicated prosecution. The theory that this must have been money from, you know, constitutes a proceeds of crime because the underlying criminal activity was not having a license for this business and just concluded there wasn’t a substantial likelihood of conviction. And this would amount to sort of this monstrous prosecution in the sense of huge volumes of material, tens of thousands of messages and 90 cell phones. And it might turn into this overwhelmingly large, time consuming prosecution, which did not have any substantial likelihood of conviction. And so that’s the decision now. And there’ll be a number of options for the now, the current attorney general, she could accept this. She could, another option we saw before, the other thing that springs to mind or the prosecutions for polygamy our of Bountiful B.C., where various AGs over the years didn’t like decisions, saying that there’s no likelihood of conviction and then just appointing serial special prosecutors until they got the decision they wanted, to prosecute. That’s possible. And I should say one protection, the Crown Counsel Act has in it to try to avoid the complete politicalization of prosecutions. Right. Which was the concern, because, of course, where there’s political interests here. Right, the AG you know, sort of staked out his position on money laundering and really clearly, according to the letter he sent to Juk, wanted this prosecution to proceed. Right.
Adam Stirling [00:09:20] Yeah.
Michael T. Mulligan [00:09:20] So one option the current attorney general would have would be try again. Right. If she wanted to, she could send a direction that another person is going to be appointed to review it. Now, one prediction we have is that when there are those kinds of directions from the attorney general, which may, of course, be political.
Adam Stirling [00:09:39] mm-hmm.
Michael T. Mulligan [00:09:39] There’s a requirement that the directions be published in the Gazette so that we can review them. That’s why I’m able to sit here and look at this direction to Peter Juk. Now, there was also an interesting provision that allows the attorney general to delay the publication. If they concluded it would be in the interests of the administration of justice. And that was done here. So we didn’t know that Mr. Eby had made this direction to try again with a different independent prosecutor until yesterday.
Adam Stirling [00:10:15] mm hmm.
Michael T. Mulligan [00:10:15] And that’s because he invoked the section of the section eight of the Crown Counsel Act, to delay publication of it. A final option people should be aware of is that the attorney general could simply direct the charges be approved. They could say, look, I don’t like that regular crown, has said there’s no likelihood of conviction. I don’t like that Mr. Juk reviewed it and agreed or I don’t like that Chris Considine has independently reviewed it yet again and again came to the conclusion that this doesn’t meet the standard for charge approval, which would be a final option.
Adam Stirling [00:10:50] hmm.
Michael T. Mulligan [00:10:50] So if the AG is bound and determined for whatever reason to insist on a prosecution, they have the power to do that. And that’s under section five of the Crown Counsel Act. It says the attorney general, or deputy attorney general can give the assistant deputy attorney general direction with respect to the approval or conduct of any specific prosecution or appeal. That direction must be given in writing to the assistant deputy attorney general and b) published in the Gazette.
Adam Stirling [00:11:19] hmm.
Michael T. Mulligan [00:11:20] And so if the current AG wishes she could simply direct Mr. Juk in writing, proceed. I don’t care about your opinion. I don’t care about the opinion of Mr. Considine, and I don’t care about the opinion of the original Crown who made this decision and go ahead. And if that happened, we might surmise it from the fact that that occurred. But we may not learn about it until, for example, after a prosecution has been completed, because of that power to delay publication, we would eventually find out which is important so that, you know, if there has been political interference in the, or potential political interference, in a prosecution in some way or other, including whether it’s approved. But we may not know about that right away.
Adam Stirling [00:12:07] hmm.
Michael T. Mulligan [00:12:07] So that’s what’s happened here. That’s why there isn’t any current prosecution. And the ball’s now back in the government’s court in terms of whether they feel so strongly about this. They wish to overrule all of the lawyers who have reviewed this and made the determination that there is not a substantial likelihood of conviction. So back-to-back to the government.
Adam Stirling [00:12:30] Fascinating, Michael Mulligan. We’re going to take a quick break. Legally Speaking, we’ll continue right after this.
[00:12:35] COMMERCIAL BREAK.
Adam Stirling [00:12:35] And we are all listening to Michael Mulligan with Mulligan Defence Lawyers. It’s Legally Speaking here on CFAX 1070. As we continue with our coverage, we also have other topics on the agenda in 9 minutes to discuss the Michael, where shall we go next?
Michael T. Mulligan [00:12:48] Yeah, perhaps the good place to go next would be a case that actually is out of Victoria, and it’s a case involving a civil claim for eye surgery gone wrong.
Adam Stirling [00:13:02] hmm.
Michael T. Mulligan [00:13:02] That has a host of, I think, interesting legal issues that arise with that kind of a claim. And the background of it is that then healthy 59-year-old from Victoria was interested in having eye surgery to correct his vision.
Adam Stirling [00:13:18] mm hmm.
Michael T. Mulligan [00:13:18] He went to a local, a surgeon in Victoria. He determined he wasn’t a good candidate for laser eye surgery of the ordinary kind because apparently he was far sighted and his eye’s have a narrow angle for some reason that didn’t make him a suitable candidate. But he wound up going to a different ice region over on the Lower mainland, who was going to take a different approach, which amounted to replacing the lenses of his eyes rather than using a laser, I guess, to reshape the front of the eye, whatever the technical term.
Adam Stirling [00:13:50] Yeah.
Michael T. Mulligan [00:13:50] For that it would be it would be to replace the lenses in the same way, the court described as, you might have surgery for cataracts, right, where they replace the foggy lens with a clear one.
Adam Stirling [00:14:01] Interesting.
Michael T. Mulligan [00:14:02] But in this case he didn’t have cataracts. So, this was entirely optional surgery, right, to correct a vision. And that’s important because it has to do with the decision, with the information that has to be provided about risks and the assessment of something that somebody might do with them. So here he had one eye done that went fine, but then the man went back to have the second day, done and things went sideways. Apparently the new lens gets folded over and injected, described as, like a taco, into a small slit in the eye. But the doctor recognizes there was some defect with the lens it was put in, and then instead of taking ten or 15 minutes, spent 52 minutes pulling it out and putting another one in. Sounds like the anesthetic wore off and the man was could feel sharp instruments in his eye and testify that he was yelling out in pain.
Adam Stirling [00:14:59] Oh my god, I am, that’s awful.
Michael T. Mulligan [00:15:01] and didn’t get any more anesthetic.
Adam Stirling [00:15:03] Oh, my, ahw.
Michael T. Mulligan [00:15:04] The doctor, for his part, claimed that he thought he gave the percent aesthetic but didn’t make any note of it in the records which the judge rejected. And then the man went blind in that eye. And they were then a whole series of various further surgeries to try to correct the problem. And they managed to recover the vision, which was completely gone apparently from that eye. But in so doing there was some injury caused to the band’s eyelid, so it drooped down in front of his eye, so he still can’t see properly out of the eye. And so, on that basis, he sued.
Adam Stirling [00:15:39] Yeah.
Michael T. Mulligan [00:15:40] And so the reason why the fact that the surgery was elective is relevant is that one of the first things was analyzed is whether the individual was told about all the risks that would be inherent in surgery. Right. And the judge found that the judge wasn’t satisfied that the man was told about all of these risks, the risks of, you know, all the complications this man is still suffered. And the reason the fact that it was elective surgery is important is that that’s not the end of it, because you then have to determine would the person have gone ahead with the procedure, even if they were properly informed of all the risks? And if it’s some kind of surgery, which is sort of life and death. Right. If you’re wheeled into the emergency room with a knife sticking out of you.
Adam Stirling [00:16:29] yeah.
Michael T. Mulligan [00:16:29] If you don’t do something, you’re going to die. Even if the doctor doesn’t take the time to go through the risk of anesthetic and the risk of infection and all these various things, and one of those things occurs, you’re not likely to have a successful claim because the assessment is going to be, well, even if I told you that, even if they failed to warn you that you could get an infection after the surgery to remove the knife from your back.
Adam Stirling [00:16:54] hmm.
Michael T. Mulligan [00:16:55] You would have done it anyways because the alternative was death. Right. And so, you might not have any, you may not have a successful claim even if you found it, even as the surgery went sideways and even if you weren’t told about a particular risk. But here, because the judge found that there was a failure to advise the man of all the risks, and because the surgery was completely elective. It was just sort of he preferred not to wear glasses free.
Adam Stirling [00:17:20] Hmm.
Michael T. Mulligan [00:17:21] The judge concluded that a reasonable person would not have proceeded had he been told, in other words, a reasonable person in these circumstances would not have consented to the procedure, if properly advised, of the risks in question, which I must say is a little ominous in terms of this particular procedure. But that’s what the judge found.
Adam Stirling [00:17:41] Hmm.
Michael T. Mulligan [00:17:42] And so that’s why whether surgery is elective or not is important when assessing what happens when something goes haywire because there are errors in surgeries like anything. Right. There isn’t a guarantee of success.
Adam Stirling [00:17:56] Yeah.
Michael T. Mulligan [00:17:57] And not every time there is a failure. Are you going to get some compensation for it. And so, here’s what the judge found, that had the man been told about the risk of list of things, corneal damage and dysfunction, permanent vision loss by ptosis, I think that’s the eyelid continuing to droop down. He wouldn’t have gone ahead. And so that then brought the judge to have to sort it out. Well, what are what’s the appropriate compensation for this? And there were a number of things that went into that decision. Part of it was assessing the damage caused by the still loss of vision. The eyelid drooping down.
Adam Stirling [00:18:38] mm hmm.
Michael T. Mulligan [00:18:38] There was also a claim based on the disfigurement, that is the way it was described, for the eyelid drooping down, as a result of these further corrective surgeries. And then there was also consideration given for, well, what should the compensation be, given that the 52 minutes of excruciating pain without anesthetic, which the judge accepted, wasn’t administered? The judge did not accept the doctor’s evidence that he administered and just didn’t write it down.
Adam Stirling [00:19:08] Yeah.
Michael T. Mulligan [00:19:08] And so the figure for that was $180,000. That’s what the man’s been awarded. In the other and I suppose one of the things I think about when there’s kind of awards like that is you think of is that really adequate compensation to somebody had to go through this process and have these potentially life altering effects. But that is what the award was. The other thing which is interesting about this case, and it arises in a variety of contexts where there are further medical interventions to try to correct. The problem is that in B.C. we have this thing called the Health Care Cost Recovery Act, and that act allows the, effectively the provincial government, to join in a claim to make a claim for the medical services that are to be provided to correct the problem. Right. Like if you injure somebody and they have to have corrective surgery and it cost the province a bunch of money, the problems can and, you know, through Tag-a-long and the queen and say, well, I want that money from the person who caused the problem. And indeed, they did that here.
Adam Stirling [00:20:17] hmm.
Michael T. Mulligan [00:20:17] And so the provincial government got involved and made a claim under the Health Care Cost Recovery Act for $7,765.83, that being the cost of the health care that was provided to the man to try to correct the problems caused by this procedure gone haywire. And the province has recovered that. And so, the result of all this is that either the doctor or more like the doctors insurance company, will be paying the man $180,000 and that amount to the province to help cover the cost of the surgeries to fix the problem. But boy, oh boy, I must say, as they read this 52 page judgement, it certainly should give somebody some pause if they’re contemplating that kind of surgery on and an elective basis. And again, this doesn’t appear to be the kind of surgery that would be the more common kind of laser corrective surgery that’s replacing lenses. But hopefully in the future there can be some additional steps engaged in to avoid this kind of catastrophic problem. One of them was suggested was perhaps the lenses should be inspected under a microscope or something before they’re inserted. But boy, oh boy, it sounds like a completely horrific experience for this man. And he will know at least to some compensation for it.
Adam Stirling [00:21:44] Absolutely. Michael Mulligan with Legally Speaking. Pleasure, as always, Michael. Until next week.
Michael T. Mulligan [00:21:48] Thank you so much. Have a great day.
Adam Stirling [00:21:50] You too, bye now.